Setting the Scene

On March 5, 1976, just a few months before the nation’s bicentennial, Michael Lee Smith robbed Patricia McDonough, and, as a result, he would fundamentally alter the Constitution of the nearly 200 year old America. Indeed, three years after the robbery, the United States Supreme Court, in an appeal brought by Mr. Smith, would hold that citizens had no expectation of privacy in information that they give to third parties.

Mr. Smith found his way to the Supreme Court, because his otherwise anonymous robbery was foiled by his insistence on terrorizing his victim in the aftermath. See when Mr. Smith robbed Ms. McDonough, he didn’t quit there. Instead, he began sending her “threatening and obscene phone calls.” He also began stalking Ms. McDonough at her home.

The police eventually caught a break when they recorded a license plate number off a 1975 Monte Carlo. Mr. Smith owned a Monte Carlo. And, with this evidence, the police tracked down his home address and had Mr. Smith’s telephone company place a “pen register” on Mr. Smith’s phone. The police didn’t bother to get a warrant, even though courts were split as to whether the police needed one in such a case.

Just a day after the pen register was in place, it recorded a call from Mr. Smith’s home to Ms. McDonough’s. Based on this evidence, the police executed a search warrant on Mr. Smith’s house.

When the government sought to introduce evidence of the search of the home, Mr. Smith objected on the basis that it was impermissibly seized as a result of the warrantless pen register. His objection was denied, and he was convicted and sentenced to six years in jail.

The Oral Argument at the Supreme Court

Mr. Smith appealed his conviction all the way to the United States Supreme Court. Just over three years after the police department ordered the phone company to place a pen register on Mr. Smith’s phone, the Supreme Court would hear his case.

Howard Cardin, a Baltimore attorney, argued the case for Mr. Smith. Mr. Cardin’s tried to hit home his primary argument that the use of the pen register in this case required a warrant because it “was an action precipitated by the police department – not by the telephone company.”

“We compare it to the situation of a housekeeper coming into a hotel room. On the one instance, if she is coming in performing her duties and comes across something that is one situation,” Mr. Cardin explained.

“On the other hand, if she is contacted by the police department and [told], ‘Why don’t you go into that room for us and see what is there because we suspect something is going on.’ Then she is operating as the agent of the police department and is not properly on the premises at that time,” he followed up.

Mr. Cardin’s oral argument marched on uneventfully for another twenty minutes. In the end, the march was a futile one. He had very few of the Justices lend a helping hand. Instead, Justices Rehnquist and Stevens put Mr. Cardin through the ringer, asking several credulous questions undercutting Mr. Cardin’s oral argument. In short, the oral argument went poorly for Mr. Cardin and, of course, Mr. Smith.

Stephen Sachs, the Attorney General of Maryland at the time, had a much easier go of it in front of the Court.

“[The pen register] hears no sound; captures no words uttered into the mouthpiece . . . ; it captures no content; it achieves no communication . . . ; it doesn’t disclose if the call is completed; it doesn’t reveal who the caller is; it doesn’t say if the number is busy; it doesn’t say who the parties are; and it doesn’t tell the duration of the call,” Mr. Sachs began at the very outset in an attempt to limit the discussion.

In Mr. Cardin’s defense, Mr. Sachs arguably had better case law on his side. Indeed, Mr. Sachs was able to rely on the Court’s earlier cases that explained that a citizen has no reasonable expectation of privacy in information that he gives to a third party – the “misplaced confidence” cases, as Mr. Sachs put it.

Mr. Sachs was put on the ropes for a moment, however, when Chief Justice Burger asserted that the misplaced confidence cases were all cases where the defendant was engaged in criminal activity. In some prospective cases involving pen registers though, Chief Justice Burger explained that the activity might be lawful.

Undeterred, Mr. Sachs kept to criminal investigations using a pen register, “I’m saying, Your Honor, that it’s a risk [a person engaged in criminal activity takes] and its the kind of risk that this Court sanctioned in a great many cases. This Court sanctioned the risk . . . that when you confide in a friend – a trusted confidant – you run the risk that person will later go to the authorities.”

Mr. Sachs then went on to argue that the case had really been decided already my the Court’s prior jurisprudence and, in any event, citizens actually had more privacy in their communications as a result of technological telephone advances.

And then, in a very ironic twist in hindsight, Mr. Sachs addressed concerns “injected” into the case by Mr. Cardin about electronic surveillance.

“The specter of electronic surveillance . . . seems to me misplaced because what we have here is a phone company mechanism that is very much a part of their normal and routine operations that people understand and know are likely to be . . . breached . . . by the phone company which may then go to lawful authorities.”

And with that, Mr. Sachs ended his argument and must have known, when he took his seat, that he had won the day.

The Supreme Court’s Opinion

The impact of Mr. Sach’s argument was immediately apparent in the majority opinion written by Justice Blackmun. The resemblance was so striking that any closer and Justice Blackmun would have been plagiarizing the Attorney General’s argument.

“These devices do not hear sound. They disclose only the telephone numbers that have been dialed—a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers,” Justice Blackmun wrote, quoting an earlier opinion.

Justice Blackmun then turned to Mr. Cardin’s various arguments, discarding each in turn. First, he rejected the idea “that people in general entertain any actual expectation of privacy in the numbers they dial.” And, for that same reason, found that Mr. Smith also did not have such an expectation.

Second, he found that even if Mr. Smith did harbor that expectation, his doing so wasn’t objectively reasonable. “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Justice Blackmun explained.

“This analysis dictates that petitioner can claim no legitimate expectation of privacy here,” Justice Blackmun continued. “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.”

Just that quick, and Mr. Smith had lost his case. Indeed, it only took the Court six paragraphs to dispense with Mr. Cardin’s arguments. And, with that, the Court issued an opinion that it likely thought was relatively unimportant in the grand scheme of things.

The Third Party Doctrine Three Decades Later

Smith is still the law. There is no contesting that. (Although, there are convincing arguments to be had that the technological facts of Smith are so antiquated compared to today that it should be inapplicable – or, at least, less persuasive.)

Nonetheless, in a recent case, five Justices suggested, without holding, that information shared with third parties can still be private and still protected by the Fourth Amendment. The Court did not go all the way though. But, Justice Sotomayor, citing Smith offered a hopeful glimpse at the future:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

Just days after a Department of Justice report sought to “safeguard[] the essential role of a free press in fostering government accountability and an open society,” the Fourth Circuit Court of Appeals ruled in favor of the government, forcing New York Times Reporter James Risen to testify as to his source of classified information.

“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source,” Judge William Traxler, who was nominated by George H.W. Bush and elevated to the Court of Appeals by Bill Clinton, wrote for a 2-1 majority.

The case, United States v. Sterling, stems from a 2006 book that Risen published where he outlined a botched attempt by the government to feed faulty nuclear blueprints to Iran. The leak itself is over ten years old at this point.

Although the government has substantial information suggesting that Jeffery Sterling, a former CIA operative, was Risen’s source of the classified leak, the DoJ, under both the Bush and Obama administrations, has attempted to force Risen to testify. The district court has refused to force him to do so on several occasions.

“The freedom of the press is one of our Constitution’s most important and salutary contributions to human history,” Judge Gregory wrote in dissent. “Reporters are ‘viewed ‘as surrogates for the public,’’ who act in the public interest by uncovering wrongdoing by business and government alike. Democracy without information about the activities of the government is hardly a democracy.”

In reversing the lower court decision, the Court of Appeals focused on a 1970’s Supreme Court case, Branzburg v. Hayes, which some argue rejected the idea that a reporter has a First Amendment right to not testify as to the identity of his source (commonly called a “reporter’s privilege“).

“The Branzburg Court considered the arguments we consider today . . . and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding,” the majority wrote. “The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise.”

Judge Gregory, who at oral argument expressed his concerns with forcing a reporter to testify, dissented from the majority opinion. Instead, he argued that the First Amendment required the Court of Appeals to recognize a reporter’s privilege.

“The freedom of the press is one of our Constitution’s most important and salutary contributions to human history,” he wrote. “Reporters are ‘viewed ‘as surrogates for the public,’’” who act in the public interest by uncovering wrongdoing by business and government alike. Democracy without information about the activities of the government is hardly a democracy.”

Judge Gregory also rejected the majority’s reliance on the Branzburg case. Tracing the history of Branzburg in the lower courts, Judge Gregory argued that the opinion’s logic and a concurrence in Branzburg by Justice Powell called the usefulness of the case into doubt.

“Justice Powell’s concurrence [in Branzburg]and the subsequent appellate history have made the lessons of Branzburg about as clear as mud,” Judge Gregory wrote.

As such, Judge Gregory would have relied on the Fourth Circuit’s own case law and recognized the same reporter’s privilege in criminal cases that it had already recognized in civil cases. In such cases, the court asks “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.”

With this most recent ruling, the Fourth Circuit joins the Fifth, Sixth, Seventh, and (arguably) D.C. Circuits in rejecting a reporter’s privilege outright in criminal cases. On the other hand, in the civil context, the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and D.C. Circuits have all found a reporter’s privilege.

Judge Gregory quickly found that government had failed to make a showing under the first three elements, as it had collected substantial amounts of circumstantial evidence that was “no less probative than direct evidence.”

In the case of national security, like Risen’s, Judge Gregory would go beyond the original three-factor test and also inquire into “the harm caused by the public dissemination of the information[] and the newsworthiness of the information conveyed.”

As to the newsworthiness of the information Risen disclosed in his reporting, Judge Gregory found that the information was no doubt valuable to the citizenry. First, he argued that because “our nation’s focus has shifted to the nuclear capabilities of Iran,” the information is germane to current public debate.

He also found that “Risen’s investigation into the methods and capabilities of the United States foreign intelligence community with respect to the Iranian nuclear program is surely news of the highest import.”

Judge Gregory only dealt with the harm caused by Risen’s dissemination of the information in a cursory fashion, as it was not developed on the record below. While he recognized the government’s interest in protecting classified information, he also stated that “[t]he First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security.’”

Judge Gregory concluded his opinion by lamenting that “the majority departs from [limited readings of] Branzburg . . . and our established precedent to announce for the first time that the First Amendment provides no protection for reporters.”

With this most recent ruling, the Fourth Circuit joins the Fifth, Sixth, Seventh, and (arguably) D.C. Circuits in rejecting a reporter’s privilege outright in criminal cases. On the other hand, in the civil context, the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and D.C. Circuits have all found a reporter’s privilege.

The case will now head back to the district court where Risen will either be forced to testify or, likely, be held in contempt of court, unless the new DoJ regulations can be construed to protect Risen in a retroactive fashion.

Note: This is the second part of a multiple part series about the ability of the government to prosecute journalists for receiving and disseminating national security information. It comes in response to increasing public musings about the prosecution of journalists related to the Edward Snowden leaks.

Overall then, whether it be federal statutes or federal constitutional law, the debate over who qualifies as a “traditional journalist” does not matter as much as one might think, as many of the protections that reporters rely on could also be relied on by “activist” journalists.

by Matthew L. Schafer

In his June 30 article, Journalism, Even When It’s Tilted, the New York Times’ David Carr joined many others in exploring whether a journalist activist is, in fact, still a journalist. Or, whether the activism running through him somehow preempts the journalist aspect of his occupation. Unfortunately, he begins his discussion from a faulty premise – that journalists at the federal level are entitled to more First Amendment protection than any other citizen.

Speaking about the NSA Leaks reporter Glenn Greenwald, who has been called an activist by many opponents of his cause, Carr explained, “Sometimes, a writer’s motives or leanings emerge between the lines over time, but you need only to read a few sentences of Mr. Greenwald’s blog to know exactly where he stands. Mr. Greenwald is an activist who is deeply suspicious of government and the national security apparatus, and he is a zealous defender of privacy and civil rights.”

Carr then quickly (rightly) concludes that Greenwald is a journalist, but then trips up in the very next paragraph.

“Taxonomy is important, partly because when it comes to divulging national secrets, the law grants journalists special protections that are afforded to no one else. To exclude some writers from the profession is to leave them naked before a government that is deeply unhappy that its secret business is on wide display.”

In the case of national secrets, leakers would be tried in federal courts. There are a few federal statutes that are aimed at protecting journalists in that context. For example, there is a Privacy Protection Act that is supposed protect journalists’ work product from searches and seizures. There is also, of course, the federal Constitution and the First Amendment. Finally, there is the Department of Justice regulation that governs when the government can subpoena or question journalists, but that does not actually provide any enforceable protections – its advisory.

First, the Privacy Protection Act is not limited to “traditional journalists.” Simply, it applies to “any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Thus, whether Greenwald, for example, is a journalist or activist is less important under the Act than whether he is intending to disseminate information to the public. Because he is intending to do so, he would get its protections (unless the government decided to allege that yet another journalist is a co-conspirator).

Second, the First Amendment provides citizens with the right to freedom of speech and the press. In this context, the Court has held that where someone publishes information that is both truthful and a matter of public concern (like Greenwald’s publication of the NSA leaks), the government’s attempt to “punish the publication of [such] truthful information seldom can satisfy constitutional standards.” Bartnicki v. Vopper, 532 US 514, 527 (2001). In such a case, the government must show a “need of the highest order.”

There is no reason to suppose that this constitutional rule only applies to “traditional journalists” and not to “activists.” Indeed, in the most recent case, the Supreme Court extended the privilege to a “radio commentator,” who was not a traditional journalist in the sense that term is normally used. He was more of an activist actually.

Third and more broadly, the Supreme Court has always shunned creating a constitutional distinction between the press and the public, where the press as an institution gets a bigger slice of the First Amendment pie than any other citizen.

Third and more broadly, the Supreme Court has always shunned creating a constitutional distinction between the press and the public, where the press as an institution gets a bigger slice of the First Amendment pie than any other citizen. As the Court has said in many cases in varying language, “[L]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods . . . .” Branzburg v. Hayes, 408 U.S. 665, 703 (1972).

Finally, under the First Amendment there is a so-called reporter’s privilege that is recognized in several United States Courts of Appeals even though the Supreme Court has never adopted it. This privilege allows reporters to refuse to testify in some cases as to the name of their constitutional sources.

It is also somewhat of a misnomer, as it is named the “reporter’s” privilege. It is a misnomer, because traditional reporters or journalists have no special claim to its protections. Instead, it generally protects anyone who can show that he or she is engaged in gathering and disseminating news.

The Ninth Circuit explained best why the taxonomy of journalist versus activist does not matter in the context of a “reporter’s privilege.”

The purpose of the journalist’s privilege . . . was not solely to protect newspaper or television reporters, but to protect the activity of ‘investigative reporting’ more generally. Thus, . . . it makes no difference whether “[t]he intended manner of dissemination [was] by newspaper, magazine, book, public or private broadcast medium, [or] handbill” because “[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993).

Overall then, whether it be federal statutes or federal constitutional law, the debate over who qualifies as a “traditional journalist” does not matter as much as one might think, as many of the protections that reporters rely on could also be relied on by “activist” journalists.

By failing to recognize this, Carr missed the mark with, at least, part of the very premise of his article. This isn’t to say that it is not important to discuss whether an activist should be less credible than a traditional journalist and ask why that should or should not the case – it is. But, before that question is even entertained, it is important to be clear just exactly what we are talking about when it comes to the definitional quandary spurred on by new forms of journalism.

Update 6:34 EST: Added hyperlinks in first and second paragraph and fixed date in first paragraph that incorrectly said Carr’s article was published on January 30 as opposed to June 30. The author regrets this error and is well aware of the irony of an error in a media criticism article.